Medical Negligence — 14 Frequently Asked Questions
A medical negligence claim in Scotland requires showing that a healthcare professional's treatment fell below the standard reasonably expected of a competent practitioner, and that this failure caused you harm. Claims against NHS Scotland are typically handled through the Central Legal Office, and the leading UK case on informed consent, Montgomery v Lanarkshire Health Board, actually originated in Scotland.
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What counts as medical negligence in Scotland?
It's when a healthcare professional's treatment falls below the standard reasonably expected of a competent practitioner in their field, and that failure causes you harm you wouldn't otherwise have suffered.
Can I claim against NHS Scotland?
Yes — clinical negligence claims against NHS Scotland bodies are typically handled through the Central Legal Office (CLO), the Scottish equivalent of NHS Resolution in England.
What is the difference between a bad outcome and negligence?
Medicine involves inherent risk, and a poor outcome alone isn't negligence — a claim requires showing the care itself fell below a reasonable standard, not just that the result was disappointing.
What is a misdiagnosis claim?
This is where a condition was missed, wrongly identified, or diagnosed too late, and that delay or error caused you harm — for example, a cancer that could have been treated more successfully if caught earlier.
Can I claim for a surgical error?
Yes, if a surgeon or surgical team's actions fell below the standard expected — for example, operating on the wrong site, leaving instruments inside a patient, or causing avoidable damage to organs or nerves.
How is medical negligence proved?
It almost always requires independent expert medical evidence confirming that the care fell below a reasonable standard (breach of duty) and that this breach caused the harm complained of (causation).
Can I claim if I wasn't properly informed about the risks of a procedure?
Yes — this is called a lack of informed consent, and the leading case on this, Montgomery v Lanarkshire Health Board, actually originated in Scotland before becoming the UK-wide authority. Doctors must tell patients about material risks and reasonable alternatives.
What is the time limit for medical negligence claims?
Generally three years under the Prescription and Limitation (Scotland) Act 1973, from either the date of the negligent treatment or your "date of knowledge" if later — when you first realised, or reasonably should have realised, that your injury was linked to substandard care.
Can I claim for birth injuries?
Yes — claims involving negligent care during pregnancy, labour, or delivery that caused injury to mother or baby are among the most significant medical negligence claims, often involving lifelong care needs.
What if the negligence happened years ago?
You may still be able to claim if it's within three years of your "date of knowledge" rather than the treatment date, or if the claim involves a child — the clock for a child's own claim doesn't start until they reach the age of legal capacity.
Can I claim against a dentist or private clinic?
Yes — negligence claims apply to private healthcare and dental treatment in the same way as NHS Scotland, though you'd typically claim against the practitioner's own indemnity insurer rather than the CLO.
What is a pre-action protocol for medical negligence claims in Scotland?
Scotland has its own voluntary pre-action protocols for personal injury and clinical negligence claims, encouraging early disclosure of evidence and investigation before court proceedings, similar in spirit to the equivalent process in England and Wales.
Do I need my medical records to make a claim?
Yes, and you're entitled to request them. Your solicitor will typically obtain your full medical records and instruct an independent expert to review them as part of building the claim.
Can I get an interim payment before my claim settles?
Yes, if liability is accepted or highly likely, courts can order interim payments to cover urgent needs — such as care costs or lost income — before the final settlement is agreed.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
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